Kharkov Group for human rights protection commentary
to the decision of the Dzerzinski district court of Kharkov of 11 January 2001 concerning the civil case started at the application of the city executive committee on prohibiting the meeting and the picket of indefinite duration of the Kharkov branch of all-Ukrainian political party Ukrainian National Assembly (UNA-UNSO).
The analysis of the motivation of the prohibition of holding the meeting and the picket of indefinite duration (tent camp) organized by the Kharkov branch of UNA-UNSO on 11 January 2001 at 13:00 on the Nezalezhnist Square in Kharkov given by the court enables us to draw the following conclusions:
1. The legal source, i.e. the normative juridical base of the Decision is open to criticism. So, the court in the Decision refers to Article 39 of the Constitution of Ukraine, Article 2 of the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 On the order of organizing and holding meetings, street marches or demonstrations in the USSR and to the Resolution of the Supreme Rada of Ukraine On the procedure of the temporary validity of some USSR laws on the territory of Ukraine of 12 September 1991.
It should be stressed that legal acts and laws of the USSR concerning the realization of political rights of citizens contradict in spirit and letter to the Constitution of Ukraine of 1996. This note also refers to the above-mentioned Decree of the Supreme Soviet of the USSR of 1988, which was adopted under the conditions of the existing at that time monopoly of the Communist party. This Decree stipulated a permissive (typical of totalitarian regimes) and not informative (typical of liberal-democratic systems) procedure of holding meetings, street marches and demonstrations. This Decree conformed to the then non-democratic Soviet Constitution of 1977, that is why it may not be regarded as conforming with the operating democratic Ukrainian Constitution of 1996.
It should be noted that the two Constitutions (of the USSR – 1977 and Ukraine – 1996) belong to quite different constitutional types according to their political and juridical directions. That is why the constitutions imply quite different types of legislation on the realization of political rights. The Decree of the Supreme Soviet of 1998 was created for use under the conditions of a totalitarian political regime (with some weaker spots due to liberal leadership, although this regime did not exclude bloody skirmishes of law-enforcing bodies with people like in Vilnius in 1991). On the contrary, the Constitution of Ukraine adopted eight years later is based on the idea of the complete aversion to the totalitarianism, clearly refuses from the domination of the state over the society and a party monopoly. So, the principles and norms of the operating Ukrainian Constitution logically imply a fundamentally different attitude to procedures of realization of the political rights of citizens.
Taking into account that the Resolution of the Supreme Rada of Ukraine On the procedure of the temporary validity of some USSR laws on the territory of Ukraine of 12 September 1991, which permits to apply in Ukraine separate norms of the Soviet legislation under the condition that they do not contradict to the Constitution and laws of Ukraine does not permit, as the judge thinks, but forbids the action of the Decree of the Supreme Soviet of 1988. That is why the reference to the Decree under existing conditions is incorrect.
2. If one considers the court Decision separately from the Decree of the Supreme Soviet of the USSR of 28 July 1988, then one must admit that even in this case it contradicts the operating Constitution of Ukraine. Article 39 of the Ukrainian Constitution reads: Citizens have the right to gather in a peaceful manner, without weapons and to conduct meetings, marches and demonstrations, about which they had to inform (italics by the author) the executive power bodies or organs of local self-rule. This means that the Constitution of Ukraine in its letter and spirit stipulates the informative, not the permissive approach to the realization of this right. It should be noted, that the Constitutional norms usually act not separately, but totally, by all constitutional legal ensemble. That is why the action of Article 39 of the Ukrainian Constitution is realized simultaneously with the action of other norms of the Basic Law, which make the autonomous legal institute.
Thus, Article 3 of the Constitution reads that confirmation and guarantees of human rights and freedoms of a citizen is the main duty of the state. This means that before restricting some constitutional rights of citizens the state shall at first do everything which is possible in order to guarantee the rights to be maximally realized. In other words, the state may not forbid a priori the realization of the constitutional right for meetings, marches and demonstrations, unless it becomes clear that this realization actually endangers the national security and public order, and the own resources of the state are insufficient for the protection. Besides, in order to delimit a too broad understanding of such restrictions, Part 2 Article 39 of the Constitution reads that the right of citizens for meetings, marches and demonstrations may be limited exclusively with the purpose of preventing disorder or crimes, for health protection of the population, or for the protection of rights and freedoms of other people.
It is clear that the court had no reason to prohibit the meeting and pickets of the UNA-UNSO because they violate public order, provoke crimes or threaten to the health of the population. The court did not refer to the facts of disorder of crimes, but just presumes their abstract possibility. The latter is inadmissible according to the Constitution, because it stipulates the informative and not the permissive approach to holding meetings, marches and demonstrations.
In its decision the court refers to the request of an officer of the Kharkov city directorate of the Ministry of Interior to prohibit the pickets and meeting because of the inability (of militia – Authors note) to guarantee the public order in the given place at the given time. However, this request was made before, not after, the attempts of militia to preserve order on the Nezalezhnist Square. The fact that militia cannot be able to preserve public order was not stated, but presumed, in the court decision and in the request of militia. This means that by its decision the court in fact sanctioned the right of militia to decide the question about the permitting of forbidding the political constitutional rights of citizens in Kharkov. This obviously concords with the traditions of a police state.
The militia arguments could be partly admissible in the case of some local conflict (for example, between street gangs, ethnic minorities, etc.). Yet, in this case the matter was the demonstration of attitude to the central authorities, about which the citizens rather have a consensus.
3. One should bear in mind that Article 39 of the Constitution mentions the possibility to limit namely the right for meetings, marches and demonstrations. The article does not mention about not so large, local forms of expressing political convictions like pickets. It should be noted that the scientific doctrine of the modern constitutional right does not identify pickets with meetings, marches and demonstrations, regarding them as a specific form of political self-expression. As constitutionalists consider, simple pickets, i.e. not numerous manifestations (groups of people) near governmental buildings that do not hinder the movement of transport and pedestrians may be conducted without preliminary informing the authorities. As to meetings, the constitutionalists recommend to apply for their control a soft informative order. The Dzerzinski district court equated without much ground the juridical regime of a picket and of a meeting.
Their reference to the unrealized by the picketers opportunity to set their camp not on the central square of the city, but in some other place does not look successful. Usually pickets (according to the international practice) are conducted in front of the buildings, where the corresponding authorities are housed. It is logical that for the action Ukraine without Kuchma the most natural place was the Nezalezhnist Square, which is faced by the building of the state city administration.
4. Assessing the arguments of militia quoted in the court decision that the planned meeting and pickets of the UNA-UNSO endanger the health and life of citizens, who are going to spend their free time near the New Year tree, one should analyze physical parameters of the compared actions. As is known, the area of the Nezalezhnist Square is larger than a score of hectares. Only the frontal part of it can accommodate 80 thousand people. The approximate area of the spot for the meeting and pickets of UNA-UNSO is 10-30 square meters when the number of participants is 10-15. So, the comparison of the scales does not need comments.
5. If one admits that in the decision taken by the court a competition of rights of citizens was present, and the court just protected the rights of one group of people for recreation near the New Year tree thus constraining the rights of the demonstrators and picketers, then the decision is all the same not just. As it follows from the supreme juridical force of the Constitution, the rights stipulated by it are basic, and thus they must be provided (guaranteed) with higher priority than other rights. This position was repeatedly expressed in the juridical comments and analyses, it is present in the decisions of the European court on human rights.
That is why the realization of constitutional political right of the Ukrainian citizen meetings, marches and demonstrations is more important in the rights hierarchy than the right for recreations on the square and adjoining territories. The latter right, although is natural, is not formulated in the capacity (rank) of a subjective constitutional right. The meeting and pickets of the UNA-UNSO were planned to be conducted not on the transportation pavement to sidewalk, but on the grass loan. Thus, the physical obstacles for them did not obviously exist. There were political obstacles, but such obstacles must be ignored by courts in a law-obedient and democratic state.
Candidate of Law, Constitutional expert of the Kharkov Group for human rights protection